King v Telegraph Group Ltd.

In defamation proceedings, a justification defence based on reasonable grounds to suspect must identify and prove objective primary facts that existed at publication. A defendant cannot justify a defamatory imputation merely by proving that police or other persons suspected the claimant. The court must consider the overall factual position, including facts favourable to the claimant, and cannot rely on post-publication events. Hearsay may prove a primary fact, but a person’s belief or suspicion is not itself such a fact. On a summary judgment application, disputed evidence and credibility issues must be left for trial unless the claimant’s case is plainly incapable of success. The existence of a conditional fee agreement does not, without more, make defamation proceedings an abuse or justify security for costs.

The claimant brought libel proceedings concerning two Sunday Telegraph articles which alleged, in substance, that he was connected with terrorist activity and that there were strong or reasonable grounds to suspect such involvement. The defendant pleaded justification and qualified privilege, and applied to strike out the claim as an abuse of process or obtain summary judgment under CPR 3.4 and CPR 24.2. It also sought security for costs because the claim was funded by a conditional fee agreement. The claimant challenged parts of the justification particulars, including reliance on police suspicions, an arrest and a search of his home. The central issues were whether the defences were legally sustainable and whether the disputed facts could properly be resolved summarily.

1. The defendant’s applications for strike-out, summary judgment and security for costs were rejected. The claimant was permitted to amend his pleadings. Certain passages of the justification case were struck out, but other pleaded factual particulars could remain.

2. A justification plea based on the meaning that there were reasonable grounds to suspect the claimant requires the defendant to plead and prove the primary facts and matters which objectively gave rise to that suspicion. The repetition rule prevents reliance merely on the fact that an allegation was made. The conduct rule generally requires conduct by the claimant to be pleaded, although strong circumstantial evidence may contribute to reasonable grounds. The assessment is made at the date of publication and against the overall factual position, including facts favourable to the claimant. Particulars cannot transfer the burden of proving innocence to the claimant.

3. Hearsay evidence may establish a primary fact, but the statement or belief of a police officer cannot itself constitute the objective grounds of suspicion. Police suspicions, an arrest or a raid may sometimes form part of the background evidence, but the jury must be told that the mere existence of those suspicions cannot support justification. The pleaded allegations that the police suspected the claimant, and that his home was raided, were therefore impermissible and were struck out.

4. The court should not conduct a mini-trial on a CPR 24.2 application. Where material facts, explanations, credibility or the interpretation of documents remain disputed, the claimant must receive credit for the possibility that the evidence will be accepted at trial. The fact that a case appears weak, even very weak, does not permit the court to deny a claimant the opportunity to persuade a jury unless the case satisfies the stringent summary judgment test.

5. The CFA regime was expressly extended to defamation claims. A solicitor’s decision to fund a claim perceived as meritorious, including one turning on witness credibility, was not thereby improper or an abuse of process. Security for costs based solely on a provisional assessment that the claim appeared weak should be ordered only rarely.